One 1984 Ford, VIN No. 1FABP43F7EZ116686 v. State

• Decision Date: 31 October 1985
• Docket Number: No. 2-85-044-CV,2-85-044-CV
• Citation: 698 S.W.2d 279
• Parties: ONE 1984 FORD, VIN # 1FABP43F7EZ116686, et al., Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 279

698 S.W.2d 279

ONE 1984 FORD, VIN # 1FABP43F7EZ116686, et al., Appellant, v. The STATE of Texas, State.

No. 2-85-044-CV.

Court of Appeals of Texas,

Fort Worth.

Oct. 31, 1985.

Henry, Hatcher, Grisham & Schiller, Jim J. Hatcher, Belvin R. Harris, Gainesville, for appellant.

Phil L. Adams, Dist. Atty., Gainesville, for the State.

Before FENDER, C.J., and ASHWORTH and JOE SPURLOCK, II, JJ.

OPINION

FENDER, Chief Justice.

This is an appeal from a judgment of forfeiture of a sum of money and a 1984 Ford automobile. Cooke County filed a notice of intended forfeiture pursuant to the Controlled Substances Act, TEX.REV.CIV.STAT.ANN. art. 4476-15, sec. 5.03(a)(5) and (6) (Vernon Supp.1985). After a hearing before the trial court without a jury, the court entered judgment ordering forfeiture of the 1984 Ford, VIN # 1FABP43F7EZ116686 and $450.00 in U.S. currency. The trial court also entered findings of fact and conclusions of law.

We affirm.

Appellant, the owner of the vehicle in question, argues in five points of error that the trial court erred in: denying appellant's Motion for Continuance; admitting evidence without a proper chain of custody; holding the property was subject to forfeiture because there is no evidence or insufficient evidence to support the ruling; failing to hold appellant was entrapped; and holding the proceedings without proof appellee had complied with TEX.REV.CIV.STAT.ANN. art. 4476-15, sec. 5.05(k) (Vernon Supp.1985).

A brief recitation of the facts is essential. As part of an on-going narcotics investigation, Gainesville police officers paid an informant, Alan Dewey, to call Jack L. Copeland, (appellant), and set up a drug buy. There was testimony that there had been three other such drug buys involving Dewey and appellant. Officers accompanied the informant to his home where they set up video recording equipment and wired the informant for sound. Just before appellant arrived at the informant's house, the officers conducted a "pat down" of the informant to ensure he had no drugs or other contraband on his person. The officers also handed him $450.00 in cash which they had previously marked and photocopied.

Appellant pulled his 1984 Ford up in front of the informant's home. The informant went out to the car and got in, returning to his house after about one minute. The record does not contain any transcription of any conversation which may have occurred between the two. The informant handed the police officers thirty "pink" pills. Appellant drove away but was stopped, searched and arrested several blocks away. There were no drugs or narcotics found in his possession. He did have the $450.00 in marked money. Testimony at the hearing established that the pills analyzed by the Department of Public Safety Crime Laboratory were a controlled substance called Phenmetrazine.

Neither appellant nor the informant testified nor were present at the hearing. A videotape statement of the informant was viewed by the trial court, but it was not admitted into evidence and is not part of the record before us now.

TEX.REV.CIV.STAT.ANN. art. 4476-15, sec. 5.03(a)(1)-(6) (Vernon Supp.1985) is as follows:

(a) The following are subject to forfeiture as authorized by this subchapter:

(1) all controlled substances that are or have been manufactured, distributed, dispensed, delivered, acquired, obtained, or possessed in violation of this Act;

(2) all raw material, products, and equipment of any kind that are used, or intended for use, in manufacturing, compounding, processing, delivering, importing, or exporting any controlled substances in violation of this Act;

(3) all property that is used, or intended for use, as a container for property described in paragraph (1) or (2) of this subsection;

(4) all books, records, and research products and materials, including formulas microfilm, tapes, and data that are used, or intended for use, in violation of this Act;

(5) any conveyance, including aircraft, vehicles, vessels, trailers, and railroad cars, that is used or intended for use to transport or in any manner facilitate the transportation, sale, receipt, possession, concealment, or delivery of any property described in paragraph (1), (2), or (3) of this subsection, provided that no conveyance used by any other person shall be forfeited under this subchapter unless the owner or other person in charge of the conveyance is a consenting party or privy to an aggravated offense under this Act or an offense under Section 4.052 of this Act;

(6) all money, certificates of deposit, negotiable instruments, securities, stocks, bonds, businesses or business investments, contractual rights, real estate, personal property, or other things of value derived from the sale, manufacture, distribution, dispensation, delivery, or other commercial undertaking violative of this Act;

Id.

Appellant in his first point of error contends the trial court erred in overruling a Motion for Continuance. The day of the hearing, November 20, 1984, appellant's attorneys filed a Motion to Quash Subpoena requiring the presence of appellant and a Motion for Continuance based on appellant's ill health. Dr. William Powell, appellant's physician, testified that appellant was suffering from diabetes and cancer, was physically and mentally incapable of assisting his attorneys and it would be detrimental to appellant's condition to bring him to court to testify. Dr. Powell also testified appellant's condition was not expected to improve. The statement in appellant's brief that appellant in fact died on January 19, 1985 is not disputed by appellee and we shall assume it to be true. Appellant contends that since the trial court granted his Motion to Quash Subpoena, thus impliedly holding appellant was too ill to attend the hearing, it was error to deny his Motion for Continuance.

Granting or denying a motion for continuance is left to the discretion of the trial court. Hernandez v. Heldenfels, 374 S.W.2d 196, 202 (Tex.1963). An order denying continuance will not be overturned absent a showing of an abuse of discretion. Id. The absence of a party to litigation, standing alone, is not enough to entitle him to a continuance. Brown v. Brown, 599 S.W.2d 135, 137 (Tex.Civ.App.--Corpus Christi 1980, no writ). TEX.R.CIV.P. 252 which controls the procedure for obtaining a continuance states in part:

The failure to obtain the deposition of any witness residing within 100 miles of the courthouse ... shall not be regarded as want of diligence ... unless by reason of age, infirmity, or sickness, or official duty, the witness will be unable to attend the court ...

Id.

The record contained ample evidence that appellant's attorneys knew of his ill health long before the hearing date, but made no effort to depose appellant at his home or anywhere else. See A.E. Swift & Sons, Concrete Contractors, Inc. v. Sam Sanders, Inc., 405 S.W.2d 402, 403 (Tex.Civ.App.--Amarillo 1966, no writ). Additionally, the trial court offered to allow the introduction of a video deposition of appellant. One of the attorneys for appellant declined the offer, stating "He's not going to testify. I don't need to talk to him. I'm going to close."

Finding no abuse of discretion in refusing to grant the Motion for Continuance, we overrule appellant's first point of error.

Appellant contends in his second point of error that the trial court erred in admitting State's Exhibits 5 and 6 due to a failure to show a proper chain of custody. It is appellant's argument that the State failed to maintain and prove the chain of custody for the controlled substance and its container. Officer Ferrell testified he received 30 pink pills from the informant after the informant had given appellant $450.00. The pills were placed in a dark colored pill bottle by Officer Ferrell. Ferrell testified that during the 2 or 3 days that elapsed before the drugs were mailed to the crime lab in Garland, the pills were kept either on Ferrell's person, locked in Ferrell's office or the evidence locker. He testified he prepared the package for mailing himself, and that the pills he mailed were the same ones he received from the informant. However, Ferrell also stated that since the pills were out of his sight while locked in the evidence locker he "wouldn't bet [his] life on it ..." (that they were the same pills).

Appellant complains that 1) Officer Ferrell could not state exactly where the pills were kept from the time he acquired them until he mailed them; 2) the pills were placed in an evidence locker to which two other officers had access; 3) the evidence was not marked before being put in the locker; and 4) Officer Ferrell testified that the pills were pink whereas the lab chemist testified that they were orange.

We find that each of appellant's objections go to the weight rather than to the admissibility of the evidence. See generally Bueno v. State, 501 S.W.2d 339, 341 (Tex.Crim.App.1973).

Courts have held evidence to be admissible where the custodian failed to testify as to its whereabouts for two days; see Deleon v. State, 505 S.W.2d 288, 289 (Tex.Crim.App.1974) (objection to failure of officer to take the stand and testify as to location of evidence for two days that it was in his possession went to weight and not admissibility in absence of contention that evidence had been tampered with), and where it was kept in a place where others had access to it; Witt v. State, 475 S.W.2d 259, 261 (Tex.Crim.App.1971) (evidence in kitchen cabinet overnight where family had access); and Wright v. State, 420 S.W.2d 411, 413 (Tex.Crim.App.1967) (evidence left on detective's desk for three weeks).

All of appellant's contentions regarding chain of custody concern the possibility that the wrong evidence was mailed to the laboratory. Appellant does not, however, directly assert that the evidence has been tampered with. We find that there are other indicia of reliability which would allow the evidence to be...